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Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).

Aaron-Andrew Bruhl has done it again. Beginning with a simple question—what can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent—Bruhl finds a surprisingly rich collection of answers that illuminate much about the institutional federal judiciary. While Bruhl plays with numbers and demonstrates a sophisticated appreciation for the possibilities and limitations of empirical work on the federal courts, he treats quantitative analysis as one source of insight into a complex world rather than as an end in itself.

We’re familiar with the notion that the Court attends to lower court precedent. For starters, the Court often intones that its decision to grant review in a particular case was driven by a division in the lower court. When a split fails to emerge, it may prevent review for a time (as the marriage equality cases reveal). Even with a circuit split, the Court may refrain from taking a case at the first opportunity, preferring to allow the issue to percolate for a time as more circuit court judges take a crack at the problem. Finally, we often observe that particular members of the Court rely on lower court precedent in the course of their own treatment of an issue—Justice Breyer does this with some frequency, Bruhl reports, but Justice Scalia consciously eschews such reliance.

Bruhl manages to deepen our understanding of all of these matters. He begins with a bit of stage setting, invoking the Condorcet jury theorem (which explains the wisdom of groups) to illustrate why a Supreme Court like ours might benefit from the input of a large number of lower court decisions. More decisions, especially those that converge on a particular answer, might appear more likely to provide the “correct” answer. But Bruhl immediately recognizes several reasons why that may not always be true: lower courts may not be offering independent assessments of a question (particularly as circuit authority piles up on one side of a question), the Supreme Court has certain institutional advantages in the form of better briefs and arguments and longer decision times, and the legal question might have changed over the course of multiple decisions.

Bruhl also offers a nice typology of reasons why a Supreme Court might prefer to invoke lower court precedent. Those decisions may have a certain truthiness (as the Condorcet theorem suggests) and there may be pragmatic value in deferring to a well-settled view of the law that has emerged in the lower courts and has seemed to work tolerably well. With the typology in hand, Bruhl examines the numbers. He compiles a database from a recent three-year period and examines the Court’s behavior in light of the nature of the lower court authority. He finds some evidence that the Court more likely follows the direction indicated in a one-sided circuit split, but the evidence is far from conclusive. Indeed, he finds a number of situations in which the Court came out on the other side of a one-sided split.

These findings lead Bruhl to ask a series of productive second-order questions. For example, he raises serious doubts that one can identify “easy” cases by pointing to the one-sided nature of a circuit split (as some quantitatively minded scholars have hypothesized). Moreover, he usefully complicates our understanding of the very nature of a circuit split. After all, we have no definitive reporting system for circuit splits. In trying to identify splits, one might focus on the language of the Court’s own opinions (which in practice lack consistency) or on the content of the parties’ briefs (which sometimes disclose more or different information on circuit splits than the Court reports). Finally, he points out that the nature of a legal question may change as time advances. Lower courts may be constrained in their view of the law by existing circuit or Supreme Court precedent, and those constraints may not apply in other courts (either because they work in a different circuit or because the relevant Supreme Court precedent was overruled in the meantime). Caution to data crunchers: the task of coding for the existence and depth of a circuit split is no easy thing.

It seems fitting, somehow, that Justices Scalia and Breyer would differ so sharply in their use of lower court precedent. Justice Scalia tends to his own knitting; he believes in his own muse and in his own obligation to offer an independent determination of the legal question at hand. Justice Breyer, ever the pragmatist, attends more closely to the consequences of legal rules and the impact of unsettling from on high an interpretation of law that has taken hold below. Interestingly, Bruhl shows that Justice Kagan, at least at this stage in her career on the Court, has more in common with Justice Scalia than with Justice Breyer. Other Justices fall somewhere in between.

Bruhl ends, however self-consciously, with an anecdote. It seems that one Fifth Circuit panel identified a textual wrinkle in a statute that seemed pretty clearly to point to an answer different from views expressed by the several circuits that had previously decided the issue the other way. What to do? Follow the text or the weight of non-binding circuit authority? The panel followed the text, creating a split and virtually inviting Supreme Court review. But then the Fifth Circuit granted en banc review and reversed the panel, concluding that it was better to preserve the unity and clarity of the law than to insist on the accuracy of its own panel’s (arguably correct) interpretation. Perhaps the Fifth Circuit was also worried about the possibility of further review; by abrogating a panel decision that had created a circuit split that might beg for High Court intervention, the en banc circuit court avoided a division that could have resulted in an appellate reversal.

We learn much about the institutional judiciary from such a story. Accuracy in strictly legal terms may be a driving force in legal decisions, but it is not the only force. Courts may act strategically to reduce the likelihood of appellate reversal, thus lessening the “accuracy” of the signal that their decisions might otherwise convey about the best interpretation of the law. Circuit courts willing to buck a strong trend in the other circuits may do so only if genuinely convinced of the correctness of their view. Perhaps, then, a court that has recently disagreed with the weight of lower court authority (thereby creating a one-sided circuit split) may be sending (counterintuitively) a more accurate signal about the law than that expressed in the previously accumulated wisdom of the group.

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Cite as: James E. Pfander, How Lower-Court Precedent Affects the Supreme Court, JOTWELL (November 14, 2014) (reviewing Aaron-Andrew Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014)), https://courtslaw.jotwell.com/how-lower-court-precedent-affects-the-supreme-court/.